Redman v Hospital for Sick Children1 (Redman)
The court confirmed that common law privilege attaches to both quality assurance documentation arising in the context of such reviews, and also to information sought orally about the review in the context of examinations for oral discovery.
The decision in Redman is significant as it is the first decision which both post-dates the Quality of Care Information Protection Act 2004 (QCIPA) AND the quality assurance review in issue post-dates the Act, although the review was not conducted pursuant to QCIPA.2
In brief, the court upheld the application of common law privilege in an oral discovery context and maintained the generally understood position that the hospital’s obligation is limited to disclosure of “material facts” only. The practical result was that the Hospital was not required to disclose the identity of health care professionals who participated in the quality assurance review, unless they were witnesses of fact to the health care in issue.
BACKGROUND TO THE MOTION
The motion arose in the context of a complex medical malpractice action brought by the mother and sister of the late Tyler Redman following his death at the Hospital.
Subsequent to Tyler’s death, the hospital undertook a quality assurance review.
At examination for discovery, the Hospital defendant refused to answer a number of questions in respect of the quality assurance documentation and the review process generally (including the identity of all the participants and any opinions expressed by them about the cause of death during the review), on the basis that the information sought was subject to privilege, was not relevant to a matter in issue, and the questions sought the expression of an opinion on the standard of care and causation.
In other words, the questions went beyond questions of fact.
The court confirmed that quality assurance documentation as well as the quality assurance review process more generally, is protected by common law privilege3.
At discovery, a party need only respond to questions relevant to the matters in issue as defined by the pleadings. The requirement to respond is subject to proper claims for privilege and to a proportionality assessment.
As a general principle, questions which seek to elicit after the fact opinions about events are improper. Questions which relate to what was done, known or practised at the material time are permissible.
The Hospital acknowledged that notwithstanding the fact that the quality assurance reports were privileged, it was still required to disclose all material facts contained within the reports, and all material facts learned during the course of the review.
The Hospital was able to confirm to the Court that it had complied with this requirement and that all material facts had been disclosed. Further, the hospital pointed out that the plaintiffs had not established any prejudice as a result of non-disclosure of the additional information being sought.
The plaintiffs asserted that disclosure of the facts would not suffice, and that they were entitled to the entirety of all the “witnesses’ knowledge, information and belief” as per the ordinary rules of oral discovery. They defined “witnesses” to include all participants in the review process.
The Court held that the plaintiff’s submissions ignored the emphasis on “fact” as prescribed by the Rules4 and which has been clearly established by case law5.
Accordingly, it was held that the plaintiff was entitled to the names and contact details of those who participated in the review, but only to the extent that their participation was as a witness to material facts.
As regard those who participated in some other manner (i.e. as part of the team who reviewed the events after the fact or who were involved in formulating), the Court held that their identities should be protected from disclosure on the basis that this information is privileged.
The decision in Redman helpfully confirms a commitment by the courts to protect common law privilege attaching to quality assurance information both in documentary disclosure and in an oral discovery context.
The courts have uniformly recognized that the purpose of the quality assurance review process is a retrospective review which seeks to improve the quality of patient care. It is intended to be a confidential process which permits hypothesis, opinion and speculation. A fear that participation in such a review may result in a lawsuit down the line would be unhelpful and counter productive to the aim of the review process, which is to improve patient care by promoting candid and free exchange of information6.
Following the decision in Redman, defendants can be confident in the knowledge that quality assurance activities remain protected by common law privilege at oral discovery, post the Quality of Care Information Protection Act 2004.
Defendants should, however, advise any witness to material facts, and who participates in a quality assurance process, that his or her identity and contact details may have to be revealed in the context of a lawsuit. However, individuals can be reassured that what they say is protected unless it relates to material facts.